31 [73] It must also be borne in mind that, with effect from 16 December 2007, s 14 of the Sexual Offences Act has been repealed in its entirety by the 2007 Act. Sections 15 and 16 of the new Act now regulate the conduct that was previously regulated by ss 14(1) and 14(3) of the 1957 Act. These sections set a uniform age of consent of 16 years for both same-sex and heterosexual acts. Counsel for the Minister thus contended, in my view correctly, that it would make no sense simply to declare ss 14(1)(b) and 14(3)(b) of the 1957 Act to be constitutionally invalid and to leave it to the legislature to deal with the consequences of such an order – the legislature has already done so. [74] To my mind, ‘appropriate relief’ in the present case (see s 38 of the Constitution) lies in a combination of the severance of words and the reading in of other words into the relevant statutory provisions. As was pointed out by the Constitutional Court in National Coalition for Gay & Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) paras 74-75: ‘[74] The severance of words from a statutory provision and reading words into the provision are closely related remedial powers of the Court. In deciding whether words should be severed from a provision or whether words should be read into one, a Court pays careful attention first, to the need to ensure that the provision which results from severance or reading words into a statute is consistent with the Constitution and its fundamental values and, secondly, that the result achieved would interfere with the laws adopted by the Legislature as little as possible. . . [75] In deciding to read words into a statute, a Court should also bear in mind that it will not be appropriate to read words in, unless in so doing a Court can define with sufficient precision how the statute ought to be extended in order to comply with the Constitution. Moreover, when reading in (as when severing) a Court should endeavour to be as faithful as possible to the legislative scheme within the constraints of the Constitution.’ [75] The remedial solution in this case lies in a severance of the words ‘under the age of 19 years’ after the words ‘a boy’ in s 14(1)(b) of the 1957 Act and the readingin of the words ‘under the age of 16 years’ in its stead. So too, in respect of s 14(3)(b) of the 1957 Act, the words ‘under the age of 19 years’, after the words ‘a girl’ must be severed from that section, to be replaced by the words ‘under the age of 16 years’. After the severance and reading-in, ss 14(1)(b) and 14(3)(b) would read as follows: ‘(1) Any male person who – ... (b) commits or attempts to commit with such a girl or with boy under the age of 16 years an immoral or indecent act; or

Sélectionner le paragraphe cible3

Se connecter à un paragraphe
Connect to an entity
Disable highlights
Ajouter à la table des matières